USING ANOTHER
PERSON’S PICTURES WITHOUT
THEIR PERMISSION IS
ILLEGAL, AND CONSTITUTES
A VIOLATION OF
THE LAW —
IT’S COPYRIGHT INFRINGEMENT
!!!!!
First of all, let me start by saying that I am getting
tired of hearing people say, “If you don’t want your pictures
stolen, then don’t post them on the
internet.” -- That is the dumbest thing I’ve ever
heard! That’s like saying if you don’t
want your car stolen, don’t park it in
an open parking lot. Or if you don’t
want your house burglarized, don’t leave
your house unoccupied. Or if you don’t
want raped, don’t go out in public, or wear skimpy clothes. Or if you don’t want your work stolen, don’t publish it.
While all of these illegal activities take
place, it doesn’t make them right, or tolerated. We have laws that protect the victims of these
crimes. And taking someone else’s
pictures without their permission is copyright infringement—and amounts to the
same thing as theft.
Now be advised, I am not a lawyer (though I play one on
TV--hehehe) and this should NOT be
construed as legal advice. It is
informative only, and legal counsel
should be consulted before considering any legal action.
This information was taken from the U.S. Copyright Office, and from various other sources, including several copyright attorneys and
specialists:
COPYRIGHT PROTECTION
1) When is my work protected?
Your work is under copyright
protection the moment it is created and fixed in a tangible form that it is
perceptible either directly or with the aid of a machine or device.
2)
What does
copyright protect?
Copyright, a form of
intellectual property law, protects original works of authorship including
literary, dramatic, musical, and artistic works, such as poetry, novels,
movies, photographs, songs, computer software, and architecture.
Copyright does not protect facts, ideas, systems, or methods of operation,
although it may protect the way these things are expressed. These things may also be protected by
Trademark and/or Patent law. (See below
for more information on “What Works Are Protected”)
a. What
Works Are Protected?
Copyright protects “original
works of authorship” that are fixed in a tangible form of expression. The
fixation need not be directly perceptible so long as it may be communicated
with the aid of a machine or device. Copyrightable works include the following
categories:
i.
literary
works;
ii.
musical
works, including any accompanying words
iii.
dramatic
works, including any accompanying music
iv.
pantomimes
and choreographic works
v.
pictorial,
graphic, and sculptural works
vi.
motion
pictures and other audiovisual works
vii.
sound
recordings
viii.
architectural
works
These categories should be viewed broadly. For example, computer
programs and most “compilations” may be registered as “literary works”; maps
and architectural plans may be registered as “pictorial, graphic, and
sculptural works.”
3) Is registration or a copyright notice required for protection?
No. In general, registration
is voluntary. The use of
a copyright notice is no longer required under U.S. law, although it is often
beneficial.
a. Form of Notice for Visually Perceptible Copies
i.
The
symbol © (the letter C in a circle), or the word “Copyright,” or the
abbreviation “Copr.”; and
ii.
The
year of first publication of the work. In the case of compilations or
derivative works incorporating previously published material, the year date of
first publication of the compilation or derivative work is sufficient; and
iii.
The name of the owner of copyright in the work, or an abbreviation
by which the name can be recognized, or a generally known alternative
designation of the owner. (Such as Fubar/MySpace user ID or user
Number)
Example: --
© 2006 John Doe
4)
What are the penalties for infringement?
a. Civil - The copyright owner may sue for actual
damages and any additional profits of the infringer; or the copyright owner may
elect, at any time before final judgment is rendered, to recover, instead of
actual damages and profits, an award of statutory damages for all infringements
involved in the action. This can be as much as $150,000 per
violation.
b. Criminal
- Any person who infringes
a copyright willfully shall be punished as provided under section 2319 of title
18, United States Code, which may
include imprisonment of up to 10 years.
c. Fraudulent Removal
of Copyright Notice - Any person who, with fraudulent intent, removes or alters any
notice of copyright appearing on a copy of a copyrighted work shall be fined
not more than $2,500 per violation.
5) How much do I have to change in order to
claim copyright in someone else's work?
Only the owner of copyright in a work has the right to prepare, or to authorize
someone else to create, a new version of that work. Accordingly, you cannot
claim copyright to another's work, no matter how much you change it, unless you
have the owner's consent. The copyright
owner may authorize any other person the right to use and/or display said
copyrighted work, without extending that
right to any third party who may derive the said work from the person so
granted said authorization.
6)
Does posting to the internet constitute an
entrance into the “Public Domain”?
Postings to the net are not granted to the public domain, and don't
grant any permission to do further copying. Nothing modern and creative is in
the public domain anymore unless the owner explicitly puts it in the public
domain. Explicitly, (as used herein) means having a note or other
specific document from the author/owner saying,
"I now give up my copyright and irrevocably place this work in the
public domain." Or, "I grant this to the public
domain." Using those exact words
or words very much like them.
It should be noted that while the typical posting of a picture on
the internet is technically protected work,
a claim could be made by the violator,
that he thought his/her use was a “Fair Use” of the protected
material. This is particularly true if
placed unmarked into the publicly open areas of the internet. In this instance, a notice of copyright infringement should be
given to the violator, prior to taking
any other action.
This is NOT the case however,
if the picture is placed in an area of the net NOT open to the general
public; because of an age
restriction, or because of a mandatory
registration or membership, or because
it is on a pay site, or because the picture
itself is classified as restricted—and its viewing is limited to the afore
mentioned—or to the membership of THAT site.
Also, you may not lay claim
to work that is not your own. This
means that if you download a picture from the net—NOT created by you—under the
fair use doctrine, you may not claim
that it is a protected item, with you as
the copyright holder.
SUMMARY
1)
If you
create it, and fix it to a tangible form – It’s protected even without a mark.
2)
If you
post it to Fubar—a membership required,
age restricted site—and set your profile to be view by members only – a
claim of “innocent mistake of fair use” will not hold up for use outside of
Fubar.
3)
If you
set your picture albums to be viewed by friends and family only – then no claim
of “innocent mistake of fair use” can be made for use by anyone outside your
friends/family list, or outside of Fubar
4)
If you
set your picture album options to block rips – then no claim of “innocent
mistake of fair use” can be made by ANYBODY for ANY REASON, without your permission. This blocking the ability to rip pictures to
another’s gallery, specifically IMPLIES
that the work is protected, and that no
permission to use has been granted. (It
is advised that you title those folders/albums with the words “NO
RIPPING/COPYING”, or “DO NOT
RIP/COPY”, or something similar. This gives a clear warning to those
individuals who use right click-copy, or
“save as” instead of the rip feature as
a general rule).
5)
Pictures
marked as “NSFW” do not have the rip feature available by default. Therefore,
no further action is required on your part, as the NSFW designation clearly implies its
private use, not available for others –
no claim of “innocent mistake of fair use” can be made by ANYBODY for ANY
REASON, without your permission.
6)
It is
strongly advised that you add the copyright symbol and notice as described in
section (3)(a)(iii) of “COPYRIGHT
PROTECTION” above. This can be placed
anywhere on the picture, and does not need
to cover any relevant portion of the picture – removing this notice is a
criminal offense, punishable by federal
law. While this is strongly advised, it is NEITHER REQUIRED— nor necessary, as
copyright attaches without it. It
simply makes it easier to prove, and
removes ANY doubt of your intent to protect your property. Copyright protection is specifically stated
and guaranteed by the U.S. Constitution (Article. I, Section 8)
